Nation of Privilege Versus Rule of Law

These days, the word “privilege” has been reduced to a trite buzzword. That’s a shame because it used to mean more than just being born into advantageous circumstances. The word, which means “private law” in old French, originally referred to a system in which different groups of people had different rights under the law.

If there’s one political idea most people agree on these days, it’s the rule of law. We argue endlessly about income inequality, wealth inequality, or inequality of opportunity, but we take it as given that equality under the law is a prerequisite for a just society. And the consequences of private law are dire. The original French privilege system was one of the main causes of that country’s bloody, chaotic revolution.

Now here’s the problem: The U.S. is looking more and more like it has a real privilege system. We are enforcing laws differently based on race but also based on class. This is un-American, and it has got to stop.


First, there is race privilege. The tragic shooting of an unarmed black teenager by a police officer in Ferguson, Missouri, has put this issue front and center, but the facts bear repeating. Our police officers enforce the law differently for different races. They arrest a much higher percentage of black people for using drugs, even though blacks and whites use illegal drugs at about the same rates and whites use the most harmful drugs — cocaine and heroin — at higher rates. That is an injustice.

Our courts are no less of a problem. Blacks are 30 percent more likely to be thrown in prison than whites convicted of the same crime. Furthermore, our Constitution guarantees citizens the right to a trial by a jury of their peers. Still, many black defendants are prosecuted by all-white juries, which are significantly more likely to return a guilty verdict against blacks. Finally, racial profiling is so rampant that black Americans who have committed no crimes have to live in constant fear of getting stopped by the cops. White Americans don’t have to live with this fear.

So if you are white, you literally live under a different legal system than black. The laws are the same on paper, but that doesn’t matter to someone who gets pulled over and harassed by the cops. It doesn’t matter to someone who gets thrown in prison.

White Americans can be complacent about racial disparities in law enforcement, thinking that at least they themselves are safe. Except that in modern America, the law now seems different for people of different income levels.

In 2010, Martin Erzinger, a private-wealth manager for Morgan Stanley Smith Barney, was the driver in a bicyclist’s hit-and-run in Eagle, Colorado. The victim suffered spinal injuries and brain bleeding. But the prosecutor dropped felony charges against Erzinger, giving the following justification:

Felony convictions have some pretty serious job implications for someone in Mr. Erzinger’s profession, and that entered into it,” [prosecutor] Hurlbert said. “When you’re talking about restitution, you don’t want to take away his ability to pay.

So a rich guy got a lighter sentence because a heavier sentence would prevent him from being rich. Obviously, this get-out-of-jail-free card isn’t available to someone from the middle class, even if they are white.

Nor is this case unique. This year, Texas teenager Ethan Couch drove drunk and killed four people but was punished only with rehab and probation. Part of Couch’s defense was that having been raised rich, he didn’t know any better — a condition some are calling “affluenza.”

Other cases of affluenza seem to be popping up. Earlier this year, an heir to the du Pont fortune got little more than a wrist slap after raping his 3-year-old daughter. The reason:

A judge who sentenced a wealthy du Pont heir to probation in the rape of his three-year-old daughter said in court documents that he would “not fare well” in prison, reports Delaware’s News Journal.

And then there was the recent case of wealthy Washington state businessman Shaun Goodman, who got a minimal sentence for his seventh DUI, for the following reason:

According to Washington Courts, anyone with a BAC above .15 with two or more prior offenses, must face mandatory jail time of 120 days…However, Judge Christine Schaller gave Goodman a year of work release. Defense attorney Paul Strophy argued that Goodman’s business would fail and his client’s employees would be out of a job if Goodman wasn’t present for work.

Again, that is a get-out-of-jail-free card that middle-class Americans, white or black, can never use.

All this adds up to one ominous conclusion: The U.S. is slowly becoming a country where income and race determine the degree to which the law of the land binds a citizen. That’s a true privilege. That’s the dangerous kind. Dangerous for those on the bottom of the privilege system, but ultimately dangerous for those on the top as well.


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